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Topic: Clear and convincing

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	1.19 BURDEN OF PROOF - CLEAR AND CONVINCING EVIDENCE
		Clear and convincing evidence is evidence that produces in your minds a firm belief or conviction that the allegations sought to be proved by the evidence are true.
		The clear and convincing standard of proof requires that the result shall not be reached by a mere balancing of doubts or probabilities, but rather by clear evidence which causes you to be convinced that the allegations sought to be proved are true.
		Clear and convincing establishes a standard of proof falling somewhere between the traditional standards of "preponderance of the evidence" and "beyond a reasonable doubt." It is an exception to the rule requiring proof by a preponderance of the evidence in civil cases and proof beyond a reasonable doubt in criminal cases.
	www.judiciary.state.nj.us /civil/charges/119.htm (1062 words)

	Clear and Convincing Evidence
		Clear and convincing evidence of the person’s actual wishes is the highest standard of evidence that may be required in substituted judgments.
		The clear and convincing evidence standard is used in civil cases (including some health law cases) and is less stringent than the "beyond the reasonable doubt" standard used in criminal law.
		It is up to individual states to decide whether or not to require clear and convincing evidence in proceedings where a guardian seeks to discontinue life-sustaining treatment for a permanently unconscious or otherwise incompetent person.
	www.ascensionhealth.org /ethics/public/issues/clear.asp (198 words)

	1995-054 \| 5/26/1995 \| Kansas Attorney General Opinion
		Clear and convincing evidence is not a quantum of proof but, rather, a quality of proof.
		Thus the clear and convincing evidence standard has been required in deportation proceedings, in denaturalization proceedings, in civil commitment proceedings, and in proceedings to finally and irrevocably terminate parents' rights to custody of their children.
		The court in Florida found that proof by clear and convincing evidence was necessitated because of the value of the licenses and the gravity and magnitude of the statutes that permit their revocation.
	www.kscourts.org /ksag/opinions/1995/1995-054.htm (2260 words)

	Black v. State (Griffen, J.)
		Clear and convincing evidence, which is a higher burden of proof than preponderance, has been defined as proof so clear, direct, weighty, and convincing that the fact finder is able to come to a clear conviction, without hesitation, of the matter asserted.
		There was not "clear and convincing evidence" at the December 6, 1994, hearing before the probate court that appellant posed a clear and present danger to herself or to others.
		But on the petition for additional involuntary commitment that is the subject of this appeal, the State failed to prove by clear and convincing evidence that appellant posed a clear andpresent danger to herself, to others, or that she was unable to care for herself.
	courts.state.ar.us /opinions/1996/ca95-179.html (1092 words)

	Gruber, Colabella, Liuzza, Kutyla & Ullmann archives
		The clear and convincing standard may also be imposed on a party where the adverse party is at a gross disadvantage in disputing an allegation, in order to "restore a fair balance between the adversarial positions of the parties." State v.
		The elements of a cause of action for divorce based upon desertion must be established by clear and satisfactory proof, and in cases where desertion is charged to be constituted by denial of matrimonial intercourse, requirement is that proof be clear and convincing, and corroborated as to each element.
		To demonstrate fraud in equity actions, proofs must be clear and convincing in order to produce firm belief or conviction in the mind of the trier of fact as to the truth of the allegations the party seeks to establish.
	www.gruberlaw.biz /publications3.html (4838 words)

	In re Interest of Yeagley, A-00-159 (not designated for permanent publication)
		Under the Act, there must be clear and convincing evidence that the subject of a petition is a mentally ill dangerous person and that neither voluntary hospitalization nor other alternatives less restrictive of his liberty than a mental health board-ordered treatment disposition are available or would suffice to prevent the harm described in § 83-1009.
		Clear and convincing evidence means the amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved and, further, that it is more than a preponderance of evidence, but less than proof beyond a reasonable doubt.
		Pursuant to § 83-1035, there must be clear and convincing evidence that neither voluntary hospitalization nor other alternatives less restrictive of his or her liberty than a mental health board-ordered treatment disposition are available or would suffice to prevent the harm described in § 83-1009.
	www.ncpa.ne.gov /ctopinio/A00-159.htm (3523 words)

	[No title]
		Clear and convincing evidence then became defined as "more than a preponderance while not quite approaching the degree of proof necessary to convict a person of a criminal offense." In re Estate of Ragen, 79 Ill. App.
		Although stated in terms of reasonable doubt, courts consider clear and convincing evidence to be more than a preponderance while not quite approaching the degree of proof necessary to convict a person of a criminal offense." Bazydlo, 164 Ill. 2d at 213.
		See 720 ILCS 5/6--2(e)(West 1996) (changing the burden of proof for a defendant wishing to present a defense of insanity from a "preponderance of the evidence" to "clear and convincing evidence" in showing that a defendant was not guilty by reason of insanity).
	www.state.il.us /court/opinions/AppellateCourt/1998/2ndDistrict/December/HTML/2970910.htm (2677 words)

	FEATURED ARTICLE
		It is not required that the proof be voluminous or undisputed before it may be characterized as ‘clear and convincing.’ But the facts must be strong and such that produce in the minds of the jurors a firm belief or conviction.
		It requires a significantly greater degree of certainty than the next lower standard of "clear and convincing evidence." The clear and convincing standard requires evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the facts for which it is offered as proof.
		To be clear and convincing, the evidence must be so clear as to leave no substantial doubt and be sufficiently strong to command the unhesitating assent of every reasonable mind.
	www.juryinstruction.com /article_section/articles/article_archive/article45.htm (1294 words)

	Docket No. 96229, In re D.T. (Il. S. Ct.)
		Although also rejecting a clear and convincing standard, the appellate court held that the State must demonstrate by a preponderance of the evidence that termination of parental rights is in the minor's best interests, and that the State had failed to meet its burden in this case.
		The stricter clear and convincing burden of proof would place a greater share of the risk of an erroneous determination on the State, operating to the benefit of the parent, but to the detriment of the child.
		Use of a clear and convincing standard of proof at the best-interests hearing would likely not impose an increased fiscal burden on the state, since the higher evidentiary burden is already required at the unfitness hearing.
	www.state.il.us /court/Opinions/SupremeCourt/2004/October/Opinions/Html/96229.htm (6676 words)

	Wired New York Forum - View Single Post - Terri Schiavo: Due process denied?
		In the state of Florida, there is a clear and convincing evidence standard which must be met of a patient’s wishes before a court order can be lawfully issued to end a patient’s life.
		Without “clear and convincing evidence “ being produced in court, Terri has been denied the due process which requires such evidence to be produced.
		And this denial of due process is in addition to Terri not being afforded her own legal counsel in a case in which the state has been called upon to end her life, and not being afforded the protection of a jury to assess the evidence asserted to be her wish.
	www.wirednewyork.com /forum/showpost.php?p=43500&postcount=8 (502 words)

	'Clear and convincing' evidence should be found before taking kids \| www.azstarnet.com ®
		The highest standard is "beyond a reasonable doubt," the middle is "clear and convincing," and the lowest is "preponderance of the evidence."
		The higher standard of "clear and convincing" must be used before removing children from their tribal homes.
		"Clear and convincing" as a standard of evidence will prove to be what is in the best interest of children.
	www.azstarnet.com /allheadlines/124345 (521 words)

	Legal Definition of Evidence, Clear And Convincing
		EVIDENCE, CLEAR AND CONVINCING - The level of proof sometimes required in a civil case for the plaintiff to prevail.
		It means the trier of fact must be persuaded by the evidence that it is highly probable that the claim or affirmative defense is true.
		The clear and convincing evidence standard is a heavier burden than the preponderance of the evidence standard but less than beyond a reasonable doubt.
	www.lectlaw.com /def/e045.htm (115 words)

	Article 6
		Indeed, other state and federal jurisdictions define clear and convincing evidence in their standard pattern instructions in terms, such as a "firm belief or conviction," [Footnote 1] which are difficult to distinguish from an abiding conviction.
		Moreover, confusion of the "abiding conviction" language of CJ 2.90 with the clear and convincing standard is also a danger under the common meaning of the terms.
		It also requires a greater degree of certainty than the next lower standard of "clear and convincing evidence." The clear and convincing standard requires evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the fact[s] for which it is offered as proof.
	www.juryinstruction.com /article_section/articles/article_archive/article06.htm (1018 words)

	Submission by counsel for President Clinton (Site not responding. Last check: 2007-10-23)
		The Clear and Convincing Standard Is Commensurate with the Grave Constitutional Power Vested in the House As the Watergate precedent indicates, this Committee should not approve an article of impeachment for which the record evidence, taken as a whole, is anything less than clear and convincing.
		Proof by clear and convincing evidence, and nothing less, is necessary to justify each member's affirmative vote for articles of impeachment.
		The Supreme Court has made abundantly clear that it is not relevant for perjury purposes whether the witness intends his answer to mislead, or indeed intends a "pattern" of answers to mislead, if the answers are truthful or literally truthful.
	www.newsindex.com /clintondefense2.html (6975 words)

	Converted WP file /web/download/n/opinion/Holding/99ca-080
		However, we believe that it is appropriate to characterize the standard of proof as clear and convincing evidence because that phrase is a term of art with a well-established meaning.
		See In re Sedillo, 84 N.M. P.2d 1353, 1355 (1972) ("For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true.").
		We further believe that requiring proof by clear and convincing evidence is an appropriate balancing of the principles of freedom of contract against the sanctity of written contracts.
	www.supremecourt.nm.org /pastopinion/VIEW/99ca-080.html (4158 words)

	[No title]
		In prosecuting this appeal, the defendants allege two assignments of error: (1) it was error for the circuit court to apply a clear and convincing evidence standard of proof to the doctrine of adverse possession, and (2) the circuit court committed error in finding that the evidence failed to prove adverse possession.
		This heightened standard of clear and convincing is one way to impress the factfinder with the importance of the decision, and thereby reduce the chances that spurious claims of adverse possession will be successful.
		In fact, it is clear that the burden on an appellant attempting to show clear error is especially strong when the findings are primarily based upon oral testimony and the circuit court has viewed the demeanor and judged the credibility of the witnesses.
	www.state.wv.us /WVSCA/docs/spring96/23173.htm (6093 words)

	BSKB > Publications > BSKB Case Briefs > Vol. 3, No. 7 (23 December 2004)
		Argument: Aradigm argued that Lilly did not prove by clear and convincing evidence that Dr. DiMarchi was a joint inventor of any claim recited in the '477 patent and that the trial record did not contain "substantial evidence" supporting the jury's verdict of joint-inventorship.
		Lilly also asserted that the correct burden of proof for establishing joint inventorship is a preponderance of the evidence, rather than clear and convincing evidence.
		Reasoning: Although section 256 creates a cause of action for correcting non-joinder of a co-inventor in an issued patent, the person seeking to be added must prove that he or she contributed to the conception of the claimed invention by clear and convincing evidence.
	www.bskb.com /brfs/brfs0307.htm (632 words)

	[No title]
		Public health & welfare -- involuntary admission -- no clear and convincing evidence that appellant posed clear and present danger to herself or others -- order reversed and dismissed.
		Instead, the probate court granted the petition to extend appellant's involuntary admission based upon the unsupported testimony of her social worker who conceded during cross-examination that appellant had been compliant with outpatient appointments and medication, and who admitted that she had not witnessed appellant threaten or harm herself or others.
		But on the petition for additional involuntary commitment that is the subject of this appeal, the State failed to prove by clear and convincing evidence that appellant posed a clear and present danger to herself, to others, or that she was unable to care for herself.
	courts.state.ar.us /opinions/1996/ca95-179.txt (1045 words)

	[No title]
		NOTE Clear and convincing establishes a standard of proof falling somewhere between the traditional standards of “preponderance of the evidence” and “beyond a reasonable doubt.” It is an exception to the rule requiring proof by a preponderance of the evidence in civil cases and proof beyond a reasonable doubt in criminal cases.
		Although the committee does not recommend it, it nonetheless recognizes that some judges may feel more comfortable in defining the usual civil standard, preponderance of the evidence, as well as the criminal standard, beyond a reasonable doubt, as an aid to the jury in understanding what clear and convincing evidence means.
		When the allegation of fraud is presented as an affirmative defense and is actually a claim of non-entitlement to alleged contractural benefits or is tantamount to a claim of breach of contract on the part of a plaintiff, the standard of proof is the usual “greater weight of the evidence” standard.
	www.judiciary.state.nj.us /civil/charges/1.19.doc (1201 words)

	ATRA :: Punitive Damages Reform
		Requires a plaintiff to show by “clear and convincing evidence” that a defendant acted with “oppression, fraud, or malice.” Requires the determination of awards for punitive damages to be made in a separate proceeding.
		Requires a plaintiff to show by “clear and convincing” evidence that she suffered “actual damages” because a defendant acted with “malice, aggravated or egregious fraud, oppression or insult” for the award of punitive damages.
		Requires a plaintiff to show by “clear and convincing” evidence that a defendant acted with malice, defined as the “conscious indifference to the rights, safety, or welfare of others.” Requires the determination of awards for punitive damages to be made in a separate proceeding at the request of the defendant.
	www.atra.org /issues/index.php?issue=7343 (4361 words)

	Kennedy Opinion
		The Court finds by clear and convincing evidence that Respondent has violated DR 2-105(A) by charging her client for admission to the U.S. District Court and for a copy of the court rules, which are overhead items not billable to a client.
		The Court finds by clear and convincing evidence that the Respondent and her client agreed that Karnes' co-counsel fees would be paid by the Respondent from any contingency fee due to the Respondent, not money due to the client.
		The Court further finds by clear and convincing evidence that the Respondent has violated DR 9-102(A)(2) by disbursing funds from her trust account to herself and others, the entitlement to which was the subject of disputes between Respondent and her client.
	www.vsb.org /disciplinary_orders/kennedy_opinion.html (662 words)

	BSKB > Publications > BSKB Case Briefs > Vol. 3, No. 21 (23 May 2005)
		The CAFC disagreed that the jury instruction on public use constituted reversible error, emphasizing that the party challenging patent validity bears the burden of proving invalidity by clear and convincing evidence.
		Although relevant precedent has stated that the patentee's rebuttal evidence must be "convincing," this is not comparable to the "clear and convincing" evidentiary burden imposed on the party asserting invalidity.
		Specifying "convincing" evidence in the jury instruction may have created confusion with respect to the "clear and convincing" evidentiary standard, and the trial judge's failure to require "convincing" evidence in the jury instruction on public use was not prejudicial.
	www.bskb.com /brfs/brfs0321.htm (503 words)

	Insanity acquittee must show clear and convincing evidence that she is not dangerous - Green v. Commissioner of Mental ...
		Insanity acquittee must show clear and convincing evidence that she is not dangerous - Green v.
		On appeal, Green argues that the allocation of the burden of proof by clear and convincing evidence to insanity acquittees in release proceedings violates her right to substantive and procedural due process, as well as her right to equal protection.
		Green does not dispute that she may continue to be confined on that basis, rather she argues that placing the burden on her in a release proceeding to prove by clear and convincing evidence that one of these two requirements is no longer met violates a fundamental liberty interest.
	biotech.law.lsu.edu /cases/psyc/Green_v_Commissioner.htm (4514 words)

	Duane Morris - New Pennsylvania Employment Statutes Update
		The most significant change to existing law by the enactment of this statute is the imposition of a "clear and convincing evidence" standard on an employee who attempts to prove bad faith on the part of the prior employer.
		By adopting a clear and convincing evidence standard, the Pennsylvania legislature clearly expressed a policy choice to favor the free exchange of information in the job-search context.
		While other states have adopted a "preponderance of the evidence" standard for rebutting the immunity, Pennsylvania's adoption of a "clear and convincing evidence" standard reflects a different policy choice and one that should allow for the early disposition of many defamation cases arising out of reference situations.
	www.duanemorris.com /alerts/alert1887.html (667 words)

	Civil Jury Instructions (Site not responding. Last check: 2007-10-23)
		When a party has the burden of proof on any claim [or affirmative defense] by clear and convincing evidence, it means you must be persuaded by the evidence that it is highly probable that the claim [or affirmative defense] is true.
		The clear and convincing evidence standard is a heavier burden than the preponderance of the evidence standard.
		I.N.S., 54 F.3d 605, 610 (9th Cir.1995) (the burden of proving a matter by clear and convincing evidence is "a heavier burden than the preponderance of the evidence standard") (quoting
	www.ca9.uscourts.gov /web/sdocuments.nsf/6b42fae391e7c85d88256aae0064a9f1/9487e18de4f6901988256ab6006522c1?OpenDocument (152 words)

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